[Direct answer]In general, employees engaged in operations under the guise of a shell company should list the shell company as the respondent; if an individual borrows the qualifications of the shell company to actually operate and hire employees, the actual operator and the shell company can be listed as joint respondents, and claim that the two parties should bear joint and several liability. In the event of work-related injuries or deaths, according to Article 3 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-Related Injury Insurance" (implemented on September 1, 2014), the shell company shall be the subject of work-related injury insurance liability. Before listing the subject, three things should be checked: who the business license is registered under, which account the wages are paid from, and who manages the hiring and attendance. If the subject is listed incorrectly, the application will be rejected or require correction, and it often takes one or two months to re-file the case, increasing the risk of statute of limitations.

I. Problem background and typical scenarios

The practice of "ghost employment" is very common in industries such as construction, catering, and freight transportation: individuals who lack qualifications or are unwilling to register independently borrow the name of a company to operate externally, hire employees themselves, and even have their salaries paid from their relatives' accounts. Employees usually work according to on-site arrangements, but after an accident occurs, they often find that the nominal "employer" claims to have nothing to do with them, while the actual operator blames funding shortages. Under this mutual shirking of responsibility, employees don't know who to claim against. There are three common scenarios: being owed wages after working for several months; being injured while operating equipment but not having their work-related injuries reported; and being verbally dismissed after a project ends without any compensation. There is also a hidden situation: employees sign labor contracts under the name of Company A, but the actual work sites and attendance records belong to Project B. When an accident occurs, the two companies blame each other, leaving employees caught in the middle. Most disputes begin when employees only check the industrial and commercial registration for the first time when seeking legal protection, only to find that they can't even fully name the actual employing unit, let alone list the correct subject in their application documents.

II. Key points of contention

First, how can the employing entity be identified? When the nominal unit and the actual operator are separated, the labor relationship attaches to which party? This is the prerequisite for all claims and also the most likely reason for claims being rejected during the filing process. Second, can joint and several liability be established? If employees claim that the subcontracting unit and the actual operator should bear joint responsibility, they need to prove that the subcontracting relationship and the employment facts existed simultaneously. Merely working in the same location is not sufficient to support this claim. Third, regarding the subject of liability and compensation items in the case of work-related injuries. In cases of work-related injuries caused by subcontracting, the subject of liability is directly specified by the judicial interpretation, and the calculation of compensation returns to the disability level and the wage base. These three disputed points correspond to three types of evidence: the internal documents of the business registration and the evidence of the subcontracting relationship to prove the subject of liability; the work badges, shift schedules, and transfer records to prove the employment; and the medical bills and appraisal conclusions to prove the compensation. If any of these types of evidence is missing, the corresponding claims may fail.

III. Professional analysis by Hengluo Lawyers

When handling disputes over subcontracted labor, the first step for Hengluo Lawyers is usually not to draft an application, but to conduct entity transparency analysis: retrieving the internal files from the industrial and commercial administration, comparing the holders of qualification certificates, the units that pay social insurance, and the channels for wage payments, and separating the two questions of who is employing the workers and who is benefiting from it. On this basis, a list of respondents is prepared, generally including both the actual operators and the subcontracted units. The arbitration and review authorities will determine the allocation of responsibilities during the substantive review, which saves time compared to first suing one party and then adding additional defendants. In cases involving work-related injuries and deaths, in accordance with Article 3 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance" (implemented on September 1, 2014), the subcontracted unit is directly identified as the responsible subject for initiating work-related injury identification. Where no written contract has been signed, the worker may also claim the double wage difference in accordance with the "Labor Contract Law of the People's Republic of China" (amended on December 28, 2012). In terms of time limits, two calculations are required: for work-related injury identification applications, the unit shall apply within 30 days from the date of the accident injury; if the unit fails to apply, the worker may apply within one year; and the arbitration statute of limitations is one year. However, unpaid wages during employment are not subject to this limitation, and it starts to run immediately after the worker leaves the job.

IV. Practical suggestions and legal basis

The main legal basis includes: the provisions of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012) regarding the establishment of employment relationships, written contracts, and compensation for termination; the provisions of the Work-related Injury Insurance Regulations (amended on December 20, 2010) regarding identification, appraisal, and treatment; the provisions of the Labor Dispute Mediation and Arbitration Law (implemented on May 1, 2008) regarding the one-year statute of limitations and the 45-day trial period; and the provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance (implemented on September 1, 2014) regarding the identification of the liable entities for subcontracted employment. In practice, it is recommended to proceed in four steps: fixing the employee's salary records, attendance records, and on-site video footage before filing a case; applying for investigation and evidence collection and retrieving the subcontracting agreements from the actual operators who are uncontactable or refuse to cooperate; calculating the compensation amount based on the employee's salary base, ensuring that overtime pay and unpaid annual leave compensation are not omitted; and, if the other party fails to fulfill the arbitral award within two years after it becomes effective, applying for compulsory enforcement. For more information on the overall process of arbitration and work-related injury compensation, please refer to the relevant documents.Labor arbitration and work-related injury compensationThe introduction of the page.

5. Henglu Law Firm's Reminder

When seeking legal redress for employment disputes involving subcontracting, correctly identifying the parties involved is the first hurdle. To summarize in three sentences: First, verify the registration information before taking action, and list both the subcontracting unit and the actual operator as defendants; Second, if the wages are deposited into the individual's account, it's crucial to retain all transaction records, as this constitutes direct evidence of the subcontracting relationship; Third, don't wait for the individual operator to provide a statement before initiating the work-related injury identification process against the subcontracting unit. Regarding statutes of limitations: For unpaid wages, claims during employment are not subject to the one-year time limit, but must be filed within one year after termination; Similarly, the one-year time limit for work-related injury claims applies separately—do not confuse the two. When the defendant's whereabouts are unknown or they clearly lack the ability to pay, first assess the feasibility of enforcement before deciding on litigation strategies. This approach is more practical than obtaining an unenforceable judgment.

VI. Frequently Asked Questions

Q1: If there is no written contract in the case of operating under the guise of a parent company, will the arbitration committee determine that there is an employment relationship between the operator and the parent company?

The determination of labor relations does not require a written contract. According to the "Notice on Issues Concerning the Establishment of Labor Relations" (issued on May 25, 2005), if an employer hires a worker without signing a written contract and the three elements of management subordination, compensation payment, and business integration are satisfied, the labor relationship is established. In the case of outsourced employment, if the employee daily obeys the instructions and arrangements of the outsourcing unit or the actual operator, the compensation is linked to attendance, and the work performed is part of the business operations, the arbitration committee usually makes a comprehensive judgment based on the work certificate, shift schedule, and payroll records. It is recommended to keep the shift schedule, the ID card photo, and the transfer record from the date of employment, and then submit the application after forming a complete chain of evidence to avoid being rejected due to incorrectly listed subjects, which may take more than a month to rectify.

Q2: When claiming that the affiliated unit should bear the employment responsibility, what other evidence should be submitted in addition to the payroll and attendance records?

The evidence related to the subject of the dispute is often more important than those related to ordinary labor disputes. It is recommended to prepare it in three groups. The first group proves the relationship between the parties: business registration information, qualification certificates, and the identity information of the nominal operators. After the case is filed, you can apply to the arbitration committee or the court to retrieve the subcontracting agreements; the second group proves the actual employment: workplace logos, work uniforms, business cards, shift and handover records, and screenshots of communication with the operators, to restore the daily management status; the third group proves the basis of compensation: if there has been a work-related injury, prepare the work-related injury identification decision and the labor capacity assessment conclusion, and calculate the various benefits according to the "Regulations on Work-related Injury Insurance" (amended on December 20, 2010). The materials should be numbered and bound in the order of first the subject, then the employment, and finally the compensation. Any missing items should be supplemented before the trial.

Q3: Labor arbitration is free of charge. How should the attorney's fees for pursuing the liability of the employing unit in a subcontracting case be agreed upon?

During the arbitration stage, there is no charge for workers. If they are not satisfied with the arbitration award and proceed to litigation, the case acceptance fee is generally 10 yuan, with the main expenditure being attorney's fees. There is no unified standard for attorney's fees, which can be calculated based on the number of cases, a percentage of the claim amount, or agreed upon contingency fees. When signing the contract, the billing method, payment milestones, and refund circumstances should be specified. Cases involving subcontractors typically have higher costs than ordinary labor disputes due to the large number of parties involved and extensive investigations. Before entrusting the case, it is necessary to estimate the total amount of wages, compensation, or work-related injury benefits that can be claimed and compare it with the cost. For cases with large amounts or complex evidence, paying in installments and hiring lawyers in stages can also help control the budget. All oral fee arrangements must be formalized in the entrustment contract to avoid disputes arising during the process.

Q4: What are the typical steps and timeframes involved in resolving labor disputes arising from subcontracting arrangements, from mediation and arbitration to enforcement?

The complete process generally involves the following steps: negotiation or mediation, the duration of which is uncertain; arbitration proceedings, which, according to the "Mediation and Arbitration Law for Labor Disputes" (effective May 1, 2008), should be concluded within 45 days from the date of acceptance. In cases involving complex circumstances, the time limit may be extended by no more than 15 days upon approval; if the party is dissatisfied with the arbitration award, they may file a lawsuit within 15 days after receiving the award. The first-instance ordinary procedure takes six months, and the summary procedure takes three months; if the other party fails to perform the award after it takes effect, the party may apply for compulsory enforcement within two years. For cases involving work-related injuries, the identification of the injury and the labor capacity assessment require several additional months, and these procedures can be conducted in parallel to shorten the overall timeframe. From the filing of the case to actually receiving the payment, the overall process typically takes more than half a year to a year. If the main evidence is accurate and the supporting documents are complete, each stage of the process has the potential to be shortened.

Q5: Before deciding to file a lawsuit, how can we identify the respondent and ensure that the arbitration award can be effectively enforced?

First, investigate and then list. The process can be divided into three steps. The first step is to retrieve the internal files of the industrial and commercial department to confirm the business qualifications and the name of the legal entity under which the operation is registered, and at the same time check whether there are branch companies or affiliated companies. The second step is to sort out the actual paths of wage payment, social insurance payment, and attendance management, and list the actual operators and the units they are affiliated with as respondents, claiming joint and several liability. The third step is to assess the enforcement capacity. Through public channels, check the litigation and enforcement records of the two main entities. If there are no enforceable assets under the individual operators' names, the units with solvency should also be included in the scope of liability. According to Article 3 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-Related Injury Insurance" (implemented on September 1, 2014), in the case of work-related injuries, the units they are affiliated with are the responsible entities.

The above Q&A is mainly based on judicial practice in the Beijing area. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.